Berman v. Knife River Corporation et al

Filing 155

ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION OF THE COURT'S JULY 10 ORDER by Judge Paul S. Grewal denying 146 (psglc2, COURT STAFF) (Filed on 10/10/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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JOHN BERMAN,

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Plaintiff,
v.

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KNIFE RIVER CORPORATION et al,
Defendants.

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Case No. 5:11-cv-03698 PSG
ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE A
MOTION FOR RECONSIDERATION
OF THE COURT’S JULY 10 ORDER
(Re: Docket No. 146)

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After the court issued its July 10, 2013, order on various discovery matters, 1 Plaintiff John

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Berman (“Berman”) filed a motion for leave to file a motion for reconsideration. 2 Knife River

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filed an opposition. Pursuant to Civ. L. R. 7-1(b), and after reviewing the papers and additional

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arguments of counsel,

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IT IS HEREBY ORDERED that Berman’s motion for leave to file a motion for

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reconsideration of the court’s July 10 order is DENIED.

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See Docket No. 143 (granting Knife River’s request for a sanction prohibiting Berman from
supporting claims and from introducing evidence on Interrogatories 6, 7, 11, and 12, denying
Berman’s request to mandate that Knife River communicate with him via e-mail, and denying
Berman’s request for a TRO).
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See Docket No. 146.

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Case No.: 5:11-cv-03698 PSG
ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE A MOTION FOR
RECONSIDERATION OF THE COURT’S JULY 10 ORDER

I. LEGAL STANDARDS

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Civ. L.R. 7-9(b) requires that to obtain leave to file a motion for reconsideration, the

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moving party must specifically show:

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(1) That at the time of the motion for leave, a material difference in fact or law exists from
that which was presented to the Court before entry of the interlocutory order for which
reconsideration is sought. The party also must show that in the exercise of reasonable
diligence the party applying for reconsideration did not know such fact or law at the
time of the interlocutory order;

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(2) The emergence of new material facts or a change of law occurring after the time of such
order; or

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(3) A manifest failure by the Court to consider material facts or dispositive legal arguments
which were presented to the Court before such interlocutory order. 3

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United States District Court
For the Northern District of California

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“Indeed, a motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed
clear error, or if there is an intervening change in the controlling law.” 4 “A Rule 59(e) motion may

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not be used to raise arguments or present evidence for the first time when they could reasonably
have been raised earlier in the litigation.” 5
II. DISCUSSION

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In the July 10 order, the court compelled Berman to produce the remaining documents

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sought in discovery by July 17, 2013. 6 Berman claims the court overlooked a material fact

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regarding his access to transcripts from the May 7, 2013, hearing regarding discovery deadlines. 7

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Civ. L.R. 7-9.

Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotations
and citations omitted).
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Id.

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See Docket No. 143 at 4 (“As to the document production issue, given that Berman at least
appears to have tried to comply with the court’s order, the court does not impose the sanction Knife
River requests at this time, provided that within seven days Berman produces in hard copy format
all documents in his possession that he believes are responsive to Knife River’s request.” (internal
citations omitted)).
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See Docket No. 146.

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Case No.: 5:11-cv-03698 PSG
ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE A MOTION FOR
RECONSIDERATION OF THE COURT’S JULY 10 ORDER